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As we discussed in an earlier post, the SEC proposed new rules and amendments to existing rules under the Investment Advisers Act (the “Act”) to implement certain provisions of the Dodd-Frank Act related to hedge fund registration.

In summary, the new rules:

clarify eligibility for SEC registration for hedge fund and other asset managers

require greater disclosure by registered IAs and each managed private fund in Form ADV

clarify the scope of new exemptions from SEC registration

propose amendments to the “pay to play” rules of the Act

This post will provide an overview of these proposals in greater depth. Please feel free to comment below or contact us with your thoughts on the new rules as we are currently in the process of drafting a comment letter to the SEC about the proposed rules.

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Rule 203A-1 Switching to or from SEC Registration

The new Rule 203A-1 provides state and SEC registered IAs with information on the time requirements for switching registration status.

State-registered switching to SEC-registered: After filing an annual amendment indicating eligibility for SEC registration (and not relying on an exemption from registration under sections 203(l) or 203(m) of the Act discussed below), apply for registration with the SEC within 90 days.

SEC-registered switching to State-registered: After filing an annual amendment indicating you are no longer eligible for SEC registration (and not relying on an exemption from registration under sections 203(l) or 203(m) of the Act discussed below), you must file Form ADV-W to withdraw SEC registration within 180 days of your fiscal year end (unless you are then eligible for SEC registration). Note: during dual registration, the Act and applicable state laws apply.

IAs registered with the SEC on July 21, 2011 must report their AUM (via amendment to Form ADV) to the SEC by August 20, 2011, or 30 days after the effective date of the amendments, and to report the market value of its AUM determined within 30 days of the filing. If such IAs are at that time below the threshold for SEC registration, the IA must withdraw from SEC registration by October 19, 2011 (and generally be registered with the state in which the adviser’s maintains its principle office and place of business).

In addition, the SEC is also proposing amendments to Form ADV which will require registered IAs to provide additional information regarding: (i) the private funds they advise, including AUM, the nature of the investors in the fund and the fund’s service providers; (ii) their advisory business, including information about the types of clients they have and potentially significant conflicts of interest; and (iii) additional information about non-advisory activities and financial industry affiliations.

Certain “exempt reporting advisers” exempt from SEC registration pursuant to Sections 203(l) and 203(m) of the Act (discussed below) must file Form ADV (but not Form ADV Part 2) with the SEC, following instructions specifically pertaining to such advisers. Such advisers must file their initial Form ADV no later than August 20, 2011.

This new exemption from SEC registration applies to “foreign private advisers.”

A “foreign private adviser” is an investment adviser that:

has no place of business in the U.S;

has less than $25 million in aggregate assets under management from U.S. clients and private fund investors;

has fewer than 15 U.S. clients and private fund investors; and

neither holds itself out to U.S. investors as an investment adviser nor acts as an investment adviser to any investment company registered under the Investment Company Act or any company that has elected to be a business development company.

“Foreign private advisers” do not need to comply with the reporting requirements under the new Section 204-4.

This new exemption from SEC registration applies to advisers that solely advise private funds and have AUM in the U.S. of less than $150MM. [HFLB note: the adviser may still be required to register pursuant to state law.] The adviser must aggregate the value of all assets of the private funds it manages to determine whether it falls below the $150MM threshold. AUM must be determined quarterly, with valuation based on the fair value of assets at the end of the quarter. If an adviser’s AUM exceeds $150MM in private fund assets, the adviser must register as an investment adviser with the SEC within one calendar quarter.

Under the proposed amendment, an adviser would be permitted to pay a registered municipal advisor, instead of a “regulated person,” to solicit government entities on its behalf if the municipal advisor is subject to the Municipal Securities Rulemaking Board’s (the “MSRB”) pay-to-play rules.

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As with any proposed rulemaking process, there are a number of ambiguities with respect to the proposals and a number of questions regarding the application of certain rules to the certain situations. These issues are expected to be identified during the comment process and hopefully the SEC will be able to modify the proposed rules as appropriate when the final rules are promulgated. One central open issue is the change from SEC to state registration for managers with less than $100MM AUM – it seems pretty clear that most states will not be able to handle an increase in the amount of managers that will be subject to state regulation.

As discussed in the proposals, public comments are due on January 24, 2011.

As we have discussed, hedge fund regulation legislation has been introduced as the Hedge Fund Transparency Act. This legislation calls for hedge funds to maintain such books and records that the SEC would require. It is likely that the books and records required by the SEC would be substantially similar to the records required for SEC-registered investment advisors. Those requirements are laid out in Rule 204-2 under the Investment Advisers Act. We have provided the full text of the rule below.

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Rule 204-2 – Books and Records to Be Maintained by Investment Advisers

a. Every investment adviser registered or required to be registered under section 203 of the Act shall make and keep true, accurate and current the following books and records relating to its investment advisory business:

1. A journal or journals, including cash receipts and disbursements, records, and any other records of original entry forming the basis of entries in any ledger.

3. A memorandum of each order given by the investment adviser for the purchase or sale of any security, of any instruction received by the investment adviser concerning the purchase, sale, receipt or delivery of a particular security, and of any modification or cancellation of any such order or instruction. Such memoranda shall show the terms and conditions of the order, instruction, modification or cancellation; shall identify the person connected with the investment adviser who recommended the transaction to the client and the person who placed such order; and shall show the account for which entered, the date of entry, and the bank, broker or dealer by or through whom executed where appropriate. Orders entered pursuant to the exercise of discretionary power shall be so designated.

5. All bills or statements (or copies thereof), paid or unpaid, relating to the business of the investment adviser as such.

6. All trial balances, financial statements, and internal audit working papers relating to the business of such investment adviser.

7. Originals of all written communications received and copies of all written communications sent by such investment adviser relating to (i) any recommendation made or proposed to be made and any advice given or proposed to be given, (ii) any receipt, disbursement or delivery of funds or securities, or (iii) the placing or execution of any order to purchase or sell any security: Provided, however, (a) That the investment adviser shall not be required to keep any unsolicited market letters and other similar communications of general public distribution not prepared by or for the investment adviser, and (b) that if the investment adviser sends any notice, circular or other advertisement offering any report, analysis, publication or other investment advisory service to more than 10 persons, the investment adviser shall not be required to keep a record of the names and addresses of the persons to whom it was sent; except that if such notice, circular or advertisement is distributed to persons named on any list, the investment adviser shall retain with the copy of such notice, circular or advertisement a memorandum describing the list and the source thereof.

8. A list or other record of all accounts in which the investment adviser is vested with any discretionary power with respect to the funds, securities or transactions of any client.

9. All powers of attorney and other evidences of the granting of any discretionary authority by any client to the investment adviser, or copies thereof.

10. All written agreements (or copies thereof) entered into by the investment adviser with any client or otherwise relating to the business of such investment adviser as such.

11. A copy of each notice, circular, advertisement, newspaper article, investment letter, bulletin or other communication that the investment adviser circulates or distributes, directly or indirectly, to 10 or more persons (other than persons connected with such investment adviser), and if such notice, circular, advertisement, newspaper article, investment letter, bulletin or other communication recommends the purchase or sale of a specific security and does not state the reasons for such recommendation, a memorandum of the investment adviser indicating the reasons therefor.

12.

i. A copy of the investment adviser’s code of ethics adopted and implemented pursuant to Rule 204A-1 that is in effect, or at any time within the past five years was in effect;

ii. A record of any violation of the code of ethics, and of any action taken as a result of the violation; and

iii. A record of all written acknowledgments as required by Rule 204A-1(a)(5) for each person who is currently, or within the past five years was, a supervised person of the investment adviser.

13.

i. A record of each report made by an access person as required by Rule 204A-1(b), including any information provided under paragraph (b)(3)(iii) of that rule in lieu of such reports;

ii. A record of the names of persons who are currently, or within the past five years were, access persons of the investment adviser; and

iii. A record of any decision, and the reasons supporting the decision, to approve the acquisition of securities by access persons under Rule 204A-1(c), for at least five years after the end of the fiscal year in which the approval is granted.

iv. An investment adviser shall not be deemed to have violated the provisions of this paragraph (a)(13) because of his failure to record securities transactions of any advisory representative if he establishes that he instituted adequate procedures and used reasonable diligence to obtain promptly reports of all transactions required to be recorded.

14. A copy of each written statement and each amendment or revision thereof, given or sent to any client or prospective client of such investment adviser in accordance with the provisions of Rule 204-3 under the Act, and a record of the dates that each written statement, and each amendment or revision thereof, was given, or offered to be given, to any client or prospective client who subsequently becomes a client.

15. All written acknowledgments of receipt obtained from clients pursuant to Rule 206(4)-3(a)(2)(iii)(B) and copies of the disclosure documents delivered to clients by solicitors pursuant to Rule 206(4)-3.

16. All accounts, books, internal working papers, and any other records or documents that are necessary to form the basis for or demonstrate the calculation of the performance or rate of return of any or all managed accounts or securities recommendations in any notice, circular, advertisement, newspaper article, investment letter, bulletin or other communication that the investment adviser circulates or distributes, directly or indirectly, to 10 or more persons (other than persons connected with such investment adviser); provided, however, that, with respect to the performance of managed accounts, the retention of all account statements, if they reflect all debits, credits, and other transactions in a client’s account for the period of the statement, and all worksheets necessary to demonstrate the calculation of the performance or rate of return of all managed accounts shall be deemed to satisfy the requirements of this paragraph.

17.

i. A copy of the investment adviser’s policies and procedures formulated pursuant to Rule 206(4)-7(a) of this chapter that are in effect, or at any time within the past five years were in effect, and

ii. Any records documenting the investment adviser’s annual review of those policies and procedures conducted pursuant to Rule 206(4)-7(b) of this chapter.

b. If an investment adviser subject to paragraph (a) of this section has custody or possession of securities or funds of any client, the records required to be made and kept under paragraph (a) of this section shall include:

1. A journal or other record showing all purchases, sales, receipts and deliveries of securities (including certificate numbers) for such accounts and all other debits and credits to such accounts.

2. A separate ledger account for each such client showing all purchases, sales, receipts and deliveries of securities, the date and price of each purchase and sale, and all debits and credits.

3. Copies of confirmations of all transactions effected by or for the account of any such client.

4. A record for each security in which any such client has a position, which record shall show the name of each such client having any interest in such security, the amount or interest of each such client, and the location of each such security.

c.

1. Every investment adviser subject to paragraph (a) of this section who renders any investment supervisory or management service to any client shall, with respect to the portfolio being supervised or managed and to the extent that the information is reasonably available to or obtainable by the investment adviser, make and keep true, accurate and current:

i. Records showing separately for each such client the securities purchased and sold, and the date, amount and price of each such purchase and sale.

ii. For each security in which any such client has a current position, information from which the investment adviser can promptly furnish the name of each such client, and the current amount or interest of such client.

2. Every investment adviser subject to paragraph (a) of this section that exercises voting authority with respect to client securities shall, with respect to those clients, make and retain the following:

i. Copies of all policies and procedures required by Rule 206(4)-6.

ii. A copy of each proxy statement that the investment adviser receives regarding client securities. An investment adviser may satisfy this requirement by relying on a third party to make and retain, on the investment adviser’s behalf, a copy of a proxy statement (provided that the adviser has obtained an undertaking from the third party to provide a copy of the proxy statement promptly upon request) or may rely on obtaining a copy of a proxy statement from the Commission’s Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system.

3. A record of each vote cast by the investment adviser on behalf of a client. An investment adviser may satisfy this requirement by relying on a third party to make and retain, on the investment adviser’s behalf, a record of the vote cast (provided that the adviser has obtained an undertaking from the third party to provide a copy of the record promptly upon request).

4. A copy of any document created by the adviser that was material to making a decision how to vote proxies on behalf of a client or that memorializes the basis for that decision.

5. A copy of each written client request for information on how the adviser voted proxies on behalf of the client, and a copy of any written response by the investment adviser to any (written or oral) client request for information on how the adviser voted proxies on behalf of the requesting client.

d. Any books or records required by this section may be maintained by the investment adviser in such manner that the identity of any client to whom such investment adviser renders investment supervisory services is indicated by numerical or alphabetical code or some similar designation.

e.

1. All books and records required to be made under the provisions of paragraphs (a) to (c)(1)(i), inclusive, and (c)(2) of this rule (except for books and records required to be made under the provisions of paragraphs (a)(11), (a)(12)(i), (a)(12)(iii), (a)(13)(ii), (a)(13)(iii), (a)(16), and (a)(17)(i) of this section), shall be maintained and preserved in an easily accessible place for a period of not less than five years from the end of the fiscal year during which the last entry was made on such record, the first two years in an appropriate office of the investment adviser.

2. Partnership articles and any amendments thereto, articles of incorporation, charters, minute books, and stock certificate books of the investment adviser and of any predecessor, shall be maintained in the principal office of the investment adviser and preserved until at least three years after termination of the enterprise.

3.

i. Books and records required to be made under the provisions of paragraphs (a)(11) and (a)(16) of this rule shall be maintained and preserved in an easily accessible place for a period of not less than five years, the first two years in an appropriate office of the investment adviser, from the end of the fiscal year during which the investment adviser last published or otherwise disseminated, directly or indirectly, the notice, circular, advertisement, newspaper article, investment letter, bulletin or other communication.

ii. Transition rule. If you are an investment adviser to a private fund as that term is defined in Rule 203(b)(3)-1, and you were exempt from registration under section 203(b)(3) of the Act prior to February 10, 2005, paragraph (e)(3)(i) of this section does not require you to maintain or preserve books and records that would otherwise be required to be maintained or preserved under the provisions of paragraph (a)(16) of this section to the extent those books and records pertain to the performance or rate of return of such private fund or other account you advise for any period ended prior to February 10, 2005, provided that you were not registered with the Commission as an investment adviser during such period, and provided further that you continue to preserve any books and records in your possession that pertain to the performance or rate of return of such private fund or other account for such period.

f. An investment adviser subject to paragraph (a) of this section, before ceasing to conduct or discontinuing business as an investment adviser shall arrange for and be responsible for the preservation of the books and records required to be maintained and preserved under this section for the remainder of the period specified in this section, and shall notify the Commission in writing, at its principal office, Washington, D.C. 20549, of the exact address where such books and records will be maintained during such period.

g. Micrographic and electronic storage permitted.

1. General. The records required to be maintained and preserved pursuant to this part may be maintained and preserved for the required time by an investment adviser on:

i. Micrographic media, including microfilm, microfiche, or any similar medium; or

ii. Electronic storage media, including any digital storage medium or system that meets the terms of this section.

2. General requirements. The investment adviser must:

i. Arrange and index the records in a way that permits easy location, access, and retrieval of any particular record;

ii. Provide promptly any of the following that the Commission (by its examiners or other representatives) may request:

A. A legible, true, and complete copy of the record in the medium and format in which it is stored;

B. A legible, true, and complete printout of the record; and

C. Means to access, view, and print the records; and

iii. Separately store, for the time required for preservation of the original record, a duplicate copy of the record on any medium allowed by this section.

3. Special requirements for electronic storage media. In the case of records on electronic storage media, the investment adviser must establish and maintain procedures:

i. To maintain and preserve the records, so as to reasonably safeguard them from loss, alteration, or destruction;

ii. To limit access to the records to properly authorized personnel and the Commission (including its examiners and other representatives); and

iii. To reasonably ensure that any reproduction of a non-electronic original record on electronic storage media is complete, true, and legible when retrieved.

h.

1. Any book or other record made, kept, maintained and preserved in compliance with Rule 17a-3 and Rule 17a-4 under the Securities Exchange Act of 1934, which is substantially the same as the book or other record required to be made, kept, maintained and preserved under this section, shall be deemed to be made, kept maintained and preserved in compliance with this section.

2. A record made and kept pursuant to any provision of paragraph (a) of this section, which contains all the information required under any other provision of paragraph (a) of this section, need not be maintained in duplicate in order to meet the requirements of the other provision of paragraph (a) of this section.

i. As used in this section the term “discretionary power” shall not include discretion as to the price at which or the time when a transaction is or is to be effected, if, before the order is given by the investment adviser, the client has directed or approved the purchase or sale of a definite amount of the particular security.

j.

1. Except as provided in paragraph (j)(3) of this section, each non-resident investment adviser registered or applying for registration pursuant to section 203 of the Act shall keep, maintain and preserve, at a place within the United States designated in a notice from him as provided in paragraph (j)(2) of this section true, correct, complete and current copies of books and records which he is required to make, keep current, maintain or preserve pursuant to any provisions of any rule or regulation of the Commission adopted under the Act.

2. Except as provided in paragraph (j)(3) of this section, each nonresident investment adviser subject to this paragraph (j) shall furnish to the Commission a written notice specifying the address of the place within the United States where the copies of the books and records required to be kept and preserved by him pursuant to paragraph (j)(1) of this section are located. Each non-resident investment adviser registered or applying for registration when this paragraph becomes effective shall file such notice within 30 days after such rule becomes effective. Each non-resident investment adviser who files an application for registration after this paragraph becomes effective shall file such notice with such application for registration.

3. Notwithstanding the provisions of paragraphs (j)(1) and (2) of this section, a non-resident investment adviser need not keep or preserve within the United States copies of the books and records referred to in said paragraphs (j)(1) and (2), if:

i. Such non-resident investment adviser files with the Commission, at the time or within the period provided by paragraph (j)(2) of this section, a written undertaking, in form acceptable to the Commission and signed by a duly authorized person, to furnish to the Commission, upon demand, at its principal office in Washington, D.C., or at any Regional Office of the Commission designated in such demand, true, correct, complete and current copies of any or all of the books and records which he is required to make, keep current, maintain or preserve pursuant to any provision of any rule or regulation of the Commission adopted under the Act, or any part of such books and records which may be specified in such demand. Such undertaking shall be in substantially the following form:

The undersigned hereby undertakes to furnish at its own expense to the Securities and Exchange Commission at its principal office in Washington, D.C. or at any Regional Office of said Commission specified in a demand for copies of books and records made by or on behalf of said Commission, true, correct, complete and current copies of any or all, or any part, of the books and records which the undersigned is required to make, keep current or preserve pursuant to any provision of any rule or regulation of the Securities and Exchange Commission under the Investment Advisers Act of 1940. This undertaking shall be suspended during any period when the undersigned is making, keeping current, and preserving copies of all of said books and records at a place within the United States in compliance with Rule 204-2(j) under the Investment Advisers Act of 1940. This undertaking shall be binding upon the undersigned and the heirs, successors and assigns of the undersigned, and the written irrevocable consents and powers of attorney of the undersigned, its general partners and managing agents filed with the Securities and Exchange Commission shall extend to and cover any action to enforce same.

and

ii. Such non-resident investment adviser furnishes to the Commission, at his own expense 14 days after written demand therefor forwarded to him by registered mail at his last address of record filed with the Commission and signed by the Secretary of the Commission or such person as the Commission may authorize to act in its behalf, true, correct, complete and current copies of any or all books and records which such investment adviser is required to make, keep current or preserve pursuant to any provision of any rule or regulation of the Commission adopted under the Act, or any part of such books and records which may be specified in said written demand. Such copies shall be furnished to the Commission at its principal office in Washington, D.C., or at any Regional Office of the Commission which may be specified in said written demand.

4. For purposes of this rule the term non-resident investment adviser shall have the meaning set out in Rule 0-2(d)(3) under the Act. [Editor’s note: There is no paragraph (d) to Rule 0-2. The term non-resident is defined in Rule 0-2(b)(2).]

k. Every investment adviser that registers under section 203 of the Act after July 8, 1997 shall be required to preserve in accordance with this section the books and records the investment adviser had been required to maintain by the State in which the investment adviser had its principal office and place of business prior to registering with the Commission.

In addition to fraud in the hedge fund space, investors need to be aware of fraud with strictly investment advisory firms. This notice and the complaint below provide more information on a specific investment advisory firm fraud. Continue reading →